Who Owns Barbie – Copyright Owners and Artists disagree

John Petrick in seacoastonline.com An interesting article from the USA on the use of cartoon and other fictional characters in modern art. Is it parody – does it fall under the ‘fair use’ provisions of US law or even under the right to free speech? Or is the use of characters such as Batman & Robin, Micky Mouse and Barbie in any context without permission an infringement of the owner’s intellectual property rights? “In 1994 2 Live Crew were sued for its rewritten version of Roy Orbison’s classic song “Pretty Woman.” The case ultimately went to the U.S. Supreme Court, which found the song was “fair use” in that it was a parody. It’s a seminal case for artists and their lawyers, in that it’s the first to make such distinctions. Also in favor of artists’ rights was a more recent case in which Mattel sued Utah photographer Tom Forsythe for copyright infringement after he created a series of images titled “Food Chain Barbie.” The collection showed Barbie dolls posing in every kind of kitchen appliance from blenders to toaster ovens. Mattel didn’t care what he was trying to show. He was using their property in his artwork. Though he earned only a few thousand dollars at the time in sales, the company sued in 1999 and pressed the case forward all the way to California’s federal Ninth Circuit Court of Appeals. In a scathing ruling against Mattel in 2003, the court found no basis for the lawsuit and ordered the giant toy company to pay for all of Forsythe’s legal fees and expenses – a whopping $2.1 million worth of pro bono work. The artist prevailed largely on First Amendment grounds.”

The EFF report that ‘Barney the purple dinosaur is throwing another temper tantrum that his little fans would envy’. Lawyers for the TV character have sent another cease and desist notice to the creator of a Barney parody site http://dustyfeet.com/evil/enemy.html . This is the same web page that the same lawyer threatened back in 2002. And, just like in 2002, the EFF argue that this Barney parody is unequivocally protected under both the First Amendment and fair use law. The cease and desist notice threatens the web page creator with a claim of copyright infringement to his Internet service provider. The EFF point out that it’s illegal to make that claim if you know that the charge is bogus. EFF Legal Director Cindy Cohn, who represents the Barney parodist, points out that EFF and another client were paid $125,000 in damages in a similar case (see Diebold Coughs Up Cash in Copyright Case :http://www.eff.org/news/archives/2004_10.php#002009)